Legislative Changes you need to be aware of
It has been a very busy year for IR Legislative changes, particularly with the FairWork Act.
In the coming weeks, three important changes will become active. From December 12, the Australian Human Rights Commission (AHRC) has compliance powers enacted to enforce Positive Duty requirements in the Sex Discrimination Act 1984 (Cth). From December 6, Zombie Agreements will automatically expire and from Christmas day the Work Health and Safety Act SA (2012) amendments treat Psychosocial hazards in the same way as physical hazards.
Positive duty
Resulting from the landmark AHRC Respect@Work Report was a recommendation to place a positive duty on employers to ‘take reasonable and proportionate measures’ to eliminate the following behaviour as far as possible:
- Discrimination on the grounds of sex in a work context
- Sexual harassment in connection with work
- Sex-based harassment in connection with work
- Conduct creating a workplace environment that is hostile on the ground of sex
- Related acts of victimisation
Such behaviour would be unlawful conduct if being engaged in:
- By the organisation itself
- By its employees, workers and agents, including conduct:
- In some cases, between such people or towards the employer or person conducting the business or undertaking
- In some cases, towards other people with whom they come into contact in connection with their work (‘third parties’, such as customers, clients, patients, suppliers, visitors or members of the public)
- In some cases, by third parties towards employees and workers in connection with their work
The concept of third parties would include students, parents, caregivers and other visitors to schools.
What is vital here is that as of December 12, the AHRC is able to enact their compliance powers to ensure that the employer is making those ‘reasonable and proportionate measures’. This positive duty model requires a shift away from a reactive model that required a complaint from an individual, to a proactive model, which will require positive actions from employers.
Exactly what will be required will depend on the size, nature and circumstances of the business or undertaking, it will also consider the resources of the organisation, and, the practicability and cost of measures. So depending on your employer a reasonable response will vary. As an example, a large employer (one having more than 200 employees) — which would be the category for many of our Independent schools — would require a systematic detailed response. Sectors such as Catholic Education and Lutheran Education should be implementing wide ranging initiatives.
What should you expect of your employer?
- That they are aware of this change and have communicated this with you
- That they consult with you – this is a key component and the AHRC states ‘Being consultative means talking to workers about what they need for a workplace to be (and feel) safe and respectful…’
- That they actively work towards meeting the 7 standards: Leadership, Culture, Knowledge, Risk management, Support, Reporting and Response, and Monitoring, evaluation and transparency
If your employer is not doing these things or you are not aware of them then it is reasonable to enquire about it and get in contact with your IEU Organiser.
Tim Oosterbaan
Branch Secretary
Zombie Agreements
So called ‘zombie’ Enterprise Agreements (EA) are those that were created before 1 January 2010 when the Fair Work Act 2009 fully commenced operation.
Because they have not been the subject of negotiation, in many circumstances they have not kept up with industry and community standards.
Hence, the Federal government put in place legislation that automatically ‘sunsets’ (rescinds) these agreements. The date of that sunset has been known for 12 months and is 7 December 2023.
In our area of work, the vast majority of employers have an up-to-date registered EA. There are very few employers who do have an existing EA approved prior to 2010.
The ‘sunset’ legislation did lead to some employers acting on this by renegotiating long expired EAs. Unfortunately there is at least one that has not acted.
Southern Vales Christian College (SVCC) has an EA still in operation from 2005, which will be extinguished by this legislation.
Earlier this year, staff approached the IEU about the intentions of their employer when the employer notified their staff it would place all staff covered by the enterprise agreement on individual contracts of employment as a consequence of the sunset legislation,.
The employer sought to reassure employees — by promising to retain all existing benefits within these contracts and improve them — but the reality of what was offered did not meet that undertaking.
In fact, the IEU argued with the employer the content of those individual contracts severely diminished their rights.
In response, the employer stated that when it said it would carry forward all existing entitlements it did not mean “all entitlements”, just “key entitlements” which were conveniently determined by the employer.
With growing and active membership at SVCC, the IEU has ensured that conditions in the 2005 agreement are adhered to and not lost. It is now becoming painfully clear to staff who felt obliged to sign individual contracts of employment because of a limited timeline set by the employer, moving away from a collective agreement is fraught with danger both individually and collectively.
Currently the school board refuses to commit to engage in negotiations for a replacement EA. The best it can do is promise ‘further discussions regarding potentially starting negotiations…’.
Apparently, with all the resources of AISSA at its disposal and a number of other sources to assist in a simple decision (how best to enshrine its employees working conditions of employment) they are saying it is too difficult a decision to make.
The employer’s intention is probably best summed up in one of its original letters to employees explaining its course of action: “The College does not intend to apply for an extension” (of the enterprise agreement) “and will be transitioning staff to updated contracts of employment between now and the end of the year.”
The thought of consultation with members or the IEU is not evident.
Staff at Southern Vales Christian School deserve better.
The IEU has commenced the process of utilising a Majority Support Determination to require the employer to commence negotiations for a replacement EA. This involves a majority of staff signing a petition stating that they want their conditions of employment captured within an enterprise agreement.
The only good reason for the employer to move staff to individual contract of employment is to remove the capacity of the group to act and negotiate collectively. It undermines their ability to influence their conditions of employment.
A salient lesson for all – collective strength is the first line of defence against employer attempts to undermine your workplace conditions of employment.
Frank Bernardi
Industrial Officer
New legislation Psychosocial Hazards in the Workplace
New legislation is coming into effect in December 2023. It will determine how employees and employers manage Workplace Health and Safety hazards associated with psychological injury and illness.
The new legislation is in form of regulations that underpin the Workplace Health and Safety Act 2012.
Psychosocial hazards and factors are anything in the design or management of work that increases the risk of work-related stress. A stress response is the physical, mental and emotional reactions that occur when a worker perceives the demands of their work exceed their ability or resources to cope.
The regulations will provide better guidance to manage the risk of these hazards in the workplace. Psychosocial hazards are hazards that may cause psychological harm. For example, workload demands, exposure to traumatic events and materials, and poor organisation justice. Matters which involve investigations need to be managed on the basis of natural justice and procedural fairness.
The new regulations will come into effect in December 2023 and will be supported by a Code of Conduct entitled Managing Psychosocial Hazards at Work.
It is imperative that we use this new legislation in our workplaces. How do we go about it?
If you experience it, lodge a hazard report (including if you are in the Catholic sector the Catholic Health Safety and Welfare Hazard report portal)[link]. Another way of protecting yourself and your colleagues is to elect a Health and Safety Rep at your school. They have powers under the Act to shut down unsafe workplaces including worksites that are psychologically unsafe.
Wendy Evans
Deputy Secretary. Workcover.
If you need any assistance with the legislation or have any questions, contact our office – 8410 0122 or enquiries@ieusa.org.au
